Issues Presented for Review

The Panel held that Plaintiff forfeited his right to challenge Best Buy's reply‑only evidence on appeal because he "did not object to or move to strike the manager's affidavit or the receipts on the basis that they were late." Opinion at ¶ 34. The Panel reasoned: "we do not review arguments raised for the first time in a motion for reconsideration." Id. This uncodified forfeiture rule does not merely lack foundation in Colorado law; it places the Panel in direct, irreconcilable conflict with the division in Amada Family Ltd. Partnership v. Pomeroy, 2021 COA 73.

The baseline rule is that a movant is strictly prohibited from introducing new arguments or evidence for the first time in a reply brief. As established in Wallman v. Kelley, 976 P.2d 330, 332 (Colo. App. 1999):

Under C.R.C.P. 56, a non‑movant's silence is structural; they cannot "waive" a movant into satisfying an unmet initial burden. See People v. Hernandez & Assocs., Inc., 736 P.2d 1238 (Colo. App. 1986).

This structural protection extends to the reply phase. Because reply‑only evidence is a legal nullity under Wallman, there is nothing to "strike." Thus, the Panel's forfeiture rule demands the impossible: it requires non‑movants to file discretionary motions to combat phantom evidence the trial court is already strictly mandated to ignore. Furthermore, because motions to strike are not codified within C.R.C.P. 56, litigants lack any structural "opportunity" to deploy them. In practice, surviving summary judgment becomes a frantic race against time—the litigant's pen against the judge's gavel—where a dispositive ruling on the late evidence could drop at any moment.

Recognizing this precise absurdity, the Amada panel explicitly rejected the uncodified forfeiture trap:

Amada therefore cemented the principle that because the rules provide no formal opportunity to strike late evidence, the failure to utilize an uncodified, extra‑procedural tool cannot be weaponized as a waiver. The right to appellate review remains absolute.

Here, by holding that Plaintiff forfeited his right to challenge the reply‑only evidence on appeal, the Panel issued a ruling in pure diametric conflict with Amada. Now, under Colorado law, a non‑movant is either expressly permitted to contest reply‑only evidence on appeal without a prior motion to strike (Amada), or strictly prohibited from doing so (the Panel).

Inevitably, the coexistence of these mutually exclusive procedural regimes forces litigants and practitioners to defensively assume the more punitive standard will govern their case. That is, requiring motions to strike merely to preserve appellate review eviscerates the core of Wallman's automatic trial‑level shield: uncodified defensive motions must now be frantically filed to strike phantom evidence and shift burdens back that never lawfully shifted in the first place. Consequently, the Panel has extinguished all three protections—Wallman, Hernandez, and Amada—statewide. To restore the structural integrity of C.R.C.P. 56, this Court must grant certiorari and reverse.

Beyond its forfeiture trap, the Panel departed from Colorado law mandating that cross‑motions for summary judgment "be considered and ruled upon separately." Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952). Central Bank & Trust Co. v. Robinson, 137 Colo. 409, 326 P.2d 82 (1958), made this concrete:

Under this rule, "concessions" made for a cross‑motion "terminate" once that motion is overruled and cannot "carry over" into the opposing motion, which must be "completely unsupported by anything except such as it had itself placed in the record." Morlan, 252 P.2d at 101.

The Panel flatly disregarded these established principles, holding that the District Court properly "considered all briefs and exhibits in connection with both parties' motions together," because Plaintiff "had the opportunity to respond to the affidavit and receipts when he submitted his reply in support of his cross‑motion for summary judgment." Opinion at ¶ 36.

This creates an impossible structural conflict. A Cross‑MSJ reply asserts that no genuine dispute of fact exists—the very "admission of facts" Morlan describes that "terminate." Yet the Panel requires this pleading to now serve a contradictory dual function: arguing that no dispute exists (for Plaintiff's Cross‑MSJ) while simultaneously creating disputes (as a surreply to Defendant's MSJ). Structurally, a single document cannot do both.

More critically, had Plaintiff not filed a Cross‑MSJ, Defendant's MSJ would have to "stand on its own"—exactly as Morlan requires. Instead, Plaintiff was penalized for invoking procedural rights.

Systemically, the Panel's rule allows movants to file evidence‑free opening briefs, then introduce evidence only in reply, all while the court treats the non‑movant's cross‑motion reply as a surrogate surreply. This renders the movant's initial burden illusory while forcing the non‑movant to defend against unanticipated arguments in an incompatible procedural vehicle.

Further nullifying the movant's burden, the Panel held that Defendant's MSJ reply‑only evidence was proper "rebuttal" because it merely "responded to Montgomery's various denials—about exiting the store, having merchandise, and having a receipt." Opinion at ¶ 35. Plaintiff made no such factual denials.

In his Response to Defendant's MSJ, Plaintiff argued that it provided no "tangible, admissible evidence" of a receipt or stolen merchandise, offering only "conclusory statements" unsupported by "actual independent evidence." CF at 645, 667. These are burden‑of‑proof arguments, not factual denials. Plaintiff was pointing out that Defendant had not carried its initial burden under C.R.C.P. 56. A non‑movant has no obligation to present contrary evidence until the movant satisfies that burden.

The Panel itself conceded that Plaintiff made no factual denials, stating:

The Panel cannot have it both ways: either Plaintiff provided "no contrary evidence" and made "no denials"—in which case Defendant's reply‑only evidence was not rebuttal, but a belated attempt to satisfy its initial burden—or Plaintiff made denials. But if the latter were true, those denials would themselves have created a genuine dispute of material fact, satisfying Plaintiff's burden as the non‑movant and precluding summary judgment. The Panel's own words thus lead inescapably to the same conclusion either way: Defendant's MSJ should have been denied.

By permitting Defendant to introduce foundational evidence for the first time in reply, then classifying it "rebuttal," the Panel nullified the movant's initial burden. Under this rule, movants may bootstrap their way past Wallman by making unsupported factual assertions in their opening briefs, characterizing the non‑movant's procedural objections as factual "denials," and then submitting the missing evidence in reply under the guise of "rebuttal." This inverts C.R.C.P. 56's burden structure and rewards strategic sandbagging.

Finally, the Panel held that Defendant's MSJ "put Montgomery on notice" because it "raised the shopkeeper's privilege and specifically claimed that he exited the store with merchandise, refused to show a receipt, and was suspected of theft." Opinion at ¶ 35. This holding directly contravenes the established principle of Suncor v. Aspen:

Defendant's MSJ contained no affidavits or business records—only bare assertions. Indeed, Defendant offered only speculation, stating:

Suncor holds that no matter how "specifically claimed" a statement is, it is legally insufficient to "raise" an issue without supporting evidence. Id. at 1269.

The Panel's rule eviscerates this protection: if general topics in opening briefs can serve as placeholder allegations, movants may file skeletal opening briefs that act as mere drafts, finalizing them with evidence in reply by using the non‑movant's response as a roadmap to cure their own deficiencies. This renders the initial burden meaningless, collapsing summary judgment from a traditionally front‑loaded procedure into a back‑and‑forth discovery process where the movant gets to belatedly satisfy its burden of production.

Excluding the improper reply‑only exhibits leaves Best Buy's opening motion entirely devoid of admissible evidence. Alternatively, even if considered, the late evidence is so internally inconsistent and so blatantly contradicted by the record that it cannot support summary judgment as a matter of law.

The four procedural questions presented above are not academic: each error was case‑dispositive. The five sub‑rulings below show exactly how. Together they constitute the prejudice showing—the affirmative demonstration that the deviations cannot be dismissed as "harmless error."

A. The Panel did not address the contradiction between the affidavit and the receipt.

The manager's affidavit claims he "observed [Plaintiff] remove two boxes of JLab headphones/earbuds from the shelf, place them in his pocket and immediately leave the Best Buy Store." CF at 780 ¶ 4. Yet, Defendant's proffered receipt purportedly shows Plaintiff making a purchase at 2:20 p.m.—one minute after his 2:19 p.m. detention shown on body camera. CF at 758; PBC at 0:00. As Plaintiff argued, this internal contradiction is cleanly resolved by the factual reality: "Plaintiff didn't steal, and his brother made the associated purchase that day." Opening Brief at 16, footnote 4.

If Plaintiff stole and "immediately" left, there was no time for a purchase. If he made a purchase and "immediately" left, the theft observation is impossible. Both cannot be true simultaneously. The Panel did not address this contradiction.

Here, Defendant's own two pieces of evidence irreconcilably contradict each other—and Plaintiff's body camera footage—yet the Panel concurrently adopted both as true, instead of denying Defendant's MSJ.

B. The Panel concluded that the receipt was admissible for its "effect on the listener."

The Panel held that the receipt was admissible for its "effect on the listener" rather than for the truth of its contents. Opinion at ¶ 26. This rationale fails because the District Court explicitly used the receipt to prove the substantive truth of three specific assertions: (1) that Plaintiff made a particular purchase, (2) that particular purchase was a Chromecast with Google TV, and (3) Plaintiff therefore could have shown the associated receipt to end his detention. CF at 878, 881, 882. Using a receipt to prove that a specific transaction occurred implicates hearsay rules:

C. The Panel misapplied evidentiary rules by shifting the foundation burden.

The Panel held that Plaintiff "failed to show that the receipt was not generated automatically by a computer without human input," thus failing to establish it was hearsay. Opinion at ¶ 29. This impermissibly shifts the evidentiary burden.

Under People v. Hamilton, 2019 COA 101, 452 P.3d 184 (Colo. App. 2019):

Furthermore, the proponent "must lay a sufficient foundation to establish that the machine's results are valid and reliable."

Therefore, Defendant bore the burden to establish both that the receipt lacked human input, and that the system was reliable. It established neither. Here, an employee scanned items, entered account information, and processed payment—classic human input rendering the receipt hearsay. See United States v. Cestnik, 36 F.3d 904, 907 (10th Cir. 1994).

By assuming computer‑printed receipts are inherently reliable and non‑hearsay, while forcing Plaintiff to prove the negative, the Panel created an unworkable rule allowing parties to bypass foundational evidentiary requirements statewide.

D. The Panel accepted the inference that Plaintiff made the purchase.

The Panel held that the receipt constituted "proof" that Plaintiff made the purchase. Opinion at ¶ 14. However, a receipt reflects only that a linked account is charged; Best Buy records purchases under the account holder's name regardless of who presents the card. CF at 831 ¶ 3. Here, Plaintiff's brother—an authorized user—made the purchase. As Plaintiff argued, a receipt tied to an account "only establishes that some person made that purchase, not actually who made it." CF at 801.

Without direct evidence identifying the physical purchaser, the Panel's cardholder‑equals‑purchaser assumption is "[m]erely colorable" and insufficient to support, let alone preclude, summary judgment:

E. The Panel dismissed sworn testimony and video as self-serving speculation.

The Panel dismissed Plaintiff's sworn affidavit—that he never concealed anything, used pockets, or met employees inside—as "self‑serving" "speculation." Opinion at ¶¶ 41, 45. But a party's sworn testimony about personal actions is competent evidence. Their inherent "self‑serving" nature neither renders affidavits inadmissible nor diminishes their weight at summary judgment.

Furthermore, Plaintiff's body camera footage—capturing the manager's contradictions, focus on hands over pockets (31 mentions vs. 3 — Appeal Opening Brief, 2025CA327, at 17), and failure to claim personal observation of theft—is also objective evidence:

By failing to do so, the Panel weighed evidence, assessed credibility, and resolved facts in Defendant's favor—all impermissible at summary judgment.